EAT confirms that right of appeal should be given to employees who fail to demonstrate their continued right to work

In Afzal v East London Pizza Ltd t/a Dominos Pizza UKEAT/0265/17 the Employment Appeal Tribunal (“EAT”) confirmed that where an employee was dismissed after he failed to evidence he still had the right to work in the UK, the employee should be given the right to appeal to allow an opportunity for him to prove that an extension application had in fact been made before his leave expired and that he therefore had the right to work in the UK.

Facts

Mr Afzal was an employee of Dominos with limited leave to remain, and therefore to work, in the UK expiring on 12 August 2016. Provided that the application to extend his leave to remain was submitted by 12 August 2016, Mr Afzal would continue to have the right to remain in the UK and would be able to continue working lawfully whilst his application was considered.

Aware of the upcoming deadline, Dominos asked Mr Afzal to provide evidence of his in-time application by 11 August 2016 to allow for any last minute issues. Mr Afzal submitted his application prior to the deadline and late on 12 August 2016 he emailed his employer purportedly attaching evidence of the application. Unfortunately the attachments could not be opened and Dominos, conscious of the possible criminal and civil penalties flowing from employing an individual without the right to work in the UK, dismissed Mr Afzal, incorrectly believing that he did not have the right to continue working for them. No right of appeal was offered. Mr Afzal brought a claim for unfair dismissal.

The Employment Tribunal (“ET”) held that Mr Afzal had not been unfairly dismissed because Dominos had a substantial reason for the dismissal, namely that there was a genuine belief that the continued employment of Mr Afzal would be unlawful. In the circumstances the ET found that it was reasonable for Dominos to hold this belief and therefore reasonable for Dominos to dismiss Mr Afzal. The ET further held that it was not unfair for Dominos not to provide a right of appeal as there was nothing to appeal against. In the ET’s view the relevant test was whether there were reasonable grounds to believe that Mr Afzal had made an in-time application by 12 August 2016, not whether a valid application had actually been made. Mr Afzal appealed to the EAT.

Decision

The EAT held that the ET had made an error in law in relation to the test to be applied regarding whether the employee should have the right to an internal appeal. The EAT found that the key issue on appeal should have been whether Mr Afzal had an entitlement to work in the UK properly backed by evidence and, in the circumstances, it appeared that there were various ways in which Mr Afzal could have evidenced his in-time application to his employer had he been given the opportunity to do so during the appeal process. The EAT remitted the case back to the ET.

Comment

The EAT noted that is always good practice to offer a right to appeal, particularly in cases such as this, where the employer may have made a genuine mistake. The case also confirms that the relevant test in circumstances such as this is not whether proof of application has been provided to the employer before expiry of the current right to work period, but whether the employee could prove that the application had been made prior to the expiry of that period.

The appeal process is also of practical importance here. In this case, when Dominos had realised the employee did in fact still have the right to remain in the UK, it offered to re-employ him on a new contract but without continuity of employment. However, had there been re-instatement following an appeal the employee would have preserved his continuity of employment.